On Appeal From the United States District Court For the Eastern District of Pennsylvania, D.C. Civil No. 86-7236.
This is an age and sex discrimination case in which both claims were tried to a jury in the district court pursuant to both parties' demand, notwithstanding that Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e (1982), the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951 to 963 (Purdon 1964) & Pa. Stat. Ann. tit. 43, §§ 951 to 962.2 (Purdon 1988), under which the sex discrimination claim was brought, does not provide for a jury trial as of right. The jury ultimately found that the defendant Pickering Creek Industrial Park, Inc. ("PCIP") had discriminated against the plaintiff Susan Bereda on the ground of sex in fixing her level of compensation for her position as real estate sales manager and awarded her back pay for what appears to be a period of seven years. In the course of its charge to the jury, however, the district court did not instruct the jury of the applicable statutory cap on the number of years for which a plaintiff may recover back pay damages in a sex discrimination case brought under Title VII or the PHRA.
After trial, the district court, realizing that the maximum period for which back pay damages are available under Title VII is two years (but ignoring the PHRA three-year cap), treated the jury's verdict as advisory and reduced the award of seven years of back pay damages to the two-year Title VII maximum. This appeal from the district court's final judgment presents three questions. First, on an issue not triable by a jury as a matter of right which was submitted to the jury on the parties' understanding that its verdict would nevertheless be binding, does Federal Rule of Civil Procedure 39(c) prevent a district court from ruling that it will treat a jury verdict as advisory after the jury has returned its verdict? We conclude that it does.
Second, in a case in which the defendant failed to object to jury instructions omitting statutory caps on back pay recovery in a sex discrimination suit, should the court of appeals set aside the jury's verdict under the plain error doctrine or should the defendant be held to its failure to object to the instructions? We conclude that the plain error doctrine should be applied. Applying the plain error doctrine to the court's failure to charge the jury on the relevant backpay cap, we will vacate the district court's judgment on the issue of damages and remand for a new trial on damages.
Third, when the parties have requested and the district court has determined that a case will be tried by a jury rendering a nonadvisory verdict pursuant to Rule 39(c), should the court of appeals, remanding the case to the district court because of trial errors, require the second trial to be conducted by a nonadvisory jury, if at least one of the litigants still desires a nonadvisory jury? We conclude that the second trial should be conducted before a nonadvisory jury in this circumstance.
I. FACTS AND PROCEDURAL HISTORY
PCIP dismissed Bereda from her position as sales manager on September 13, 1985. She thereupon filed an age and sex discrimination claim with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). Upon receipt of right to sue letters from both the EEOC and the PHRC, Bereda filed an action against PCIP in the district court, charging age and sex discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982 & Supp. IV 1986) ("ADEA"), Title VII, and the PHRA. Bereda also pled claims for wrongful discharge and breach of contract. On appeal, Bereda has asserted entitlement to recovery under the Equal Pay Act, 29 U.S.C. § 206(d) (1982), although she never raised this claim in the district court.
Bereda had been working for PCIP since February 2, 1979, when she was hired at an annual salary of $15,000 plus commissions. At the time of her dismissal in 1985, Bereda was forty-two years old. Her salary had risen to $19,100 per year, and she was earning $25,686 per year including commissions. While Bereda did not have a college degree, she attended Dickinson College for a time and had her real estate sales license since 1973. One month before Bereda was dismissed, PCIP hired Peter Schultz as sales manager. Schultz was a twenty-three year-old male college graduate with one year of experience in the real estate business. During his first year at PCIP, Schultz received $33,540.
Both parties demanded a jury trial, and the case was tried to a jury. The jury found in a special verdict that neither age nor sex was a determinative factor in Bereda's dismissal, that age had not affected her remuneration, but that PCIP had discriminated against her on the basis of her sex in setting her compensation level. The jury denied Bereda front pay damages, but awarded her $55,000 back pay damages. Bereda had argued that she was entitled to the difference between her 1985 pay and that of Schultz, $7,854, for each of the approximately seven years she had worked at PCIP.
Although the defendant raised the issue for the first time in post-trial motions, "the district court suggested that it would be "plain error" to sanction the jury's award because 42 U.S.C. § 2000e-5(g) caps back pay under Title VII at two years prior to the filing of the complaint and the jury had not been instructed as to the cap. The court held that the jury's verdict was advisory with respect to the sex discrimination claim and adopted the jury's finding that PCIP had engaged in sex discrimination, but reduced Bereda's back pay award to the salary differential computed from two years prior to the filing of her claim with the EEOC. In the period from October 23, 1983, to September 13, 1985, this amounted to $15,124. This appeal and cross-appeal followed.
In her appeal, Bereda submits that the district court violated Federal Rule of Civil Procedure 39(c) by announcing that it would treat the jury's verdict as advisory after the jury returned its verdict. She also asserts that PCIP waived any right it had to the statutory restrictions on back pay awards by failing to raise them until post-trial motions, ...